An entertainment law specialist has suggested that one consequence of the recent Court of Appeal decision that, if successful, would have allowed TVCatchup (TVC) to stream Public Service Broadcasting (PSB) channels on mobile, could be that public service broadcasters (PSBs) would be able to charge retransmission fees.
The UK Court of Appeal however referred the cross appeal brought by ITV, Channel 4 and Channel 5, regarding the extent to which Internet is cable and can take advantage of Section 73 of Copyright, Designs and Patents Act, to the Court of Justice of the European Union (CJEU). Section 73 allows cable operators to carry the main PSB channels without permission and in 2011, the High Court agreed with TVC that Internet was cable for this purpose.
Separately, the EU has instigated infringement proceedings against the UK government concerning Section 73 as the EU believes that Section 73 does not comply with EU laws.
Earlier in 2015, the [Upper Chamber] House of Lords indicated a desire to repeal Section 73 in its entirety, recently describing the provision as “outdated”. The Government has published a consultation paper that confirms its commitment to the removal of Section 73 altogether.
According to Nick Swimer, Entertainment and Media Partner at the law firm Reed Smith LLP, until there is a decision from the European Court (which could take some time), TVC will continue streaming the PSB channels online. “However, broadcasters are still likely to be happier than TVC with the outcome as they have, at least, stopped TVC from streaming their PSB channels to mobile, but will remain frustrated by delays in putting this litigation to bed once and for all,” he suggests.
“By coincidence, on the same day as the TVC judgement came out, the Government published a consultation paper which confirms that it is ‘committed to the removal of Section 73 and plans to legislate to this effect at the earliest opportunity’, he notes. This would not only affect TVC, and appear to make the current litigation redundant, but also impact traditional cable television providers.
“Essentially, removing Section 73 would deprive TVC of its defence and it will have to take down the PSB channels from its website. Also, traditional cable television providers would no longer have a right to carry the PSB channels for free so this could, for the first time, open the way for the public service broadcasters to charge retransmission fees,” he advises.